https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3218

Abidan v Wanjiru (Environment and Land Appeal E119 of 2025) [2026] KEELC 3218 (KLR) (20 May 2026) (Ruling) Neutral citation: [2026] KEELC 3218 (KLR) Republic of Kenya In the Environment and Land Court at Thika Environment and Land Appeal E119 of 2025 JM Onyango, J May 20, 2026 Between Kaari Abidan Appellant and Peter Mweaura Wanjiru Respondent Ruling 1.By a Notice of Motion dated 3rd October 2025, the Applicant seeks inter alia leave to file and serve a Memorandum and Record of Appeal out of time against the judgment of the Honourable Charles Mwaniki, Senior Resident Magistrate (SRM) delivered on 22nd July 2025 in Ruiru Magistrates Court in Environment and Land Case No. E135 of 2021. The Applicant further seeks orders of stay of execution, leave to remain in possession of Ruiru/kiu Block 2 (Githunguri)/2807 (hereinafter ‘the suit property’), preservatory orders over the suit property, as well as restraining and injunctive relief against the Respondents pending the hearing and determination of the intended appeal. 2.The application is premised on the grounds on the face of it and the supporting affidavit of Kaari Abidan sworn on even date. 3.The Applicant depones that the impugned judgment ordered the cancellation of the Applicant’s title to the suit property and directed that the Respondent be registered as the lawful proprietor thereof. The trial court further issued a permanent injunction restraining the Applicant from entering upon, dealing with, or in any manner interfering with the said parcel. 4.The Applicant further contends that the trial court granted a stay of execution for a limited period of forty (40) days, which period has since lapsed. It is their case that, notwithstanding due diligence, administrative delays in the Case Tracking System (CTS) portal and in the preparation and release of the judgment and typed proceedings frustrated their ability to lodge the intended appeal within time. 5.The Applicant contends that the delay was neither deliberate nor inordinate, but was occasioned by circumstances beyond their control. 6.The Applicant further contends that, in the prevailing circumstances, they face imminent risk of eviction and the possible alienation of the suit property before the intended appeal is heard and determined. They contend that such prejudice would not be merely procedural but would strike at the substance of the intended appeal, rendering it nugatory should the appellate process ultimately succeed. 7.It is further submitted that the intended appeal raises substantial and arguable points of both law and fact, and that unless the Court enlarges time, the Applicant’s right of appeal will be unjustly defeated, occasioning prejudice that cannot be adequately remedied at a later stage. 8.The Application is strenuously opposed through the replying affidavit of Peter Mwaura Wanjiku sworn on 11th November 2025. 9.The Respondent contends that the application is devoid of merit, frivolous, vexatious, and an abuse of the process of the Court. It is their position that the intended appeal ought to have been lodged within the statutory period of thirty (30) days, and that no sufficient basis has been laid to warrant the exercise of the Court’s discretion in extending time. 10.The Respondent further asserts that, as advised by their learned counsel on record, an application for enlargement of time falls to be determined upon consideration of inter alia the reasons for the delay, the length of the delay, and the prejudice likely to be occasioned to the parties. In that regard, they submit that the Applicant has failed to meet the threshold for the relief sought. 11.The Respondent contends that the allegation that the judgment was inaccessible is untrue. The Respondent maintains that the judgment was delivered in the presence of both parties’ counsel and was available on the very day of delivery, and they have annexed documentary evidence demonstrating that a copy of the judgment was duly obtained. On that basis, they assert that the explanation proffered for the delay is false and misleading. 12.The Respondent takes the position that litigation must at some point come to an end, and that the present application is merely an attempt to prolong a matter already conclusively determined. They further contend that the intended appeal discloses no arguable or triable issue. 13.In the alternative, and without prejudice to their opposition, the Respondent submits that should the Court be inclined to grant the application, it ought to be on terms, including an order that the Applicant deposits the sum of Ksh. 10,000,000/- in Court as security for due performance of the decree. 14.The Respondent therefore urges the Court to dismiss the application with costs. 15.The application was canvassed by way of written submissions duly filed by both parties. Issues for Determination 16.Having examined the application, the replying affidavit in opposition, the rival submissions and the relevant authorities, the key issues for determination are:i.Whether the Court should enlarge time for the filing of the intended appealii.Whether a stay of execution of the judgment and decree should be granted pending appeal. Analysis and Determination 17.The Court turns first to the issue of enlargement of time for the filing of the intended appeal. 18.The governing provision is section 79G of the Civil Procedure Act, which stipulates that:“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”(emphasis mine) 19.The provision embodies a dual imperative. Finality in litigation on the one hand, and the preservation of the right of appeal on the other. 20.It is within that statutory balance that the Court is required to be satisfied that “good and sufficient cause” has been shown before departing from the ordinary timeline of 30 days. 21.That threshold is not satisfied by mere assertion. It demands an explanation that is both reasonable and credible, viewed in the context of the delay complained of, and tested against the requirement that litigation must attain finality within a reasonable time. 22.The Court must therefore be persuaded that the failure to comply with the statutory timeline was not due to indolence, tactical delay, or unexplained inaction, but arose from circumstances sufficiently weighty to justify the departure from the norm. 23.The principles governing enlargement of time were settled by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR as follows:“Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtWhether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; andWhether in certain cases, like election petitions, public interest should be a consideration for extending time.” 24.These principles are the guardrails by which the Court distinguishes between excusable delay and inexcusable inaction. The burden therefore rests squarely upon the Applicant to place before the Court a candid, coherent, and satisfactory explanation accounting for the delay in its entirety. 25.The Applicant herein attributes the delay principally to administrative constraints in obtaining typed proceedings necessary for the preparation and lodging of the intended appeal. The Applicant further states that they were unable to obtain the impugned judgment from the CTS portal, and that this impeded timely access to the material required to prosecute the appeal. It is their case that the delay was neither deliberate nor inordinate, but arose from circumstances beyond their control. 26.The Court notes that albeit outside the statutorily prescribed time, the Applicant did take certain initial steps towards the appellate process within a relatively short time after delivery of judgment. A Notice of Appeal was filed on 28th August 2025, while a request for typed proceedings had been lodged a day earlier on 27th August 2025. 27.Those steps lend some credence to the Applicant’s contention that there existed an intention to challenge the impugned decision and that the matter was not, at least at inception, met with complete inactivity. 28.However, the Court must still examine whether the explanation advanced sufficiently accounts for the delay that followed. 29.The Applicant’s principal contention is that the judgment could not be accessed through the CTS portal. Yet beyond that assertion, no evidence has been placed before the Court demonstrating that the CTS system was inaccessible, compromised, or otherwise incapable of yielding the judgment at the material time. 30.Indeed, the Respondent has taken a directly contrary position, contending that the judgment was available on the date of delivery and annexed a copy of the impugned judgment said to demonstrate that a copy thereof was uploaded promptly and made available to the parties in the suit. 31.The Applicant seeks to bring the present matter within the ambit of the Supreme Court decision of Muthuuri & 4 others v Attorney General & 2 others [2022] KESC 74 (KLR), submitting that the delay herein similarly arose from administrative impediments beyond their control. 32.This case is distinguishable from the Muthuuri case. In Muthuuri (supra), the Court was dealing with a litigant who had done all that could reasonably be expected of them and who left behind a clear paper trail showing that the delay lay within the court’s administrative machinery. 33.In the instant application, no material has been placed before the Court demonstrating any CTS outage, malfunction, or other operational impediment at the material time. The Applicant’s assertion of inaccessibility remains unverified. 34.The Court notes that judgment was delivered on 22nd July 2025 and the statutory period of thirty (30) days lapsed without any appeal being lodged. Thereafter, the Applicant requested proceedings on 27th August 2025, filed a Notice of Appeal on 28th August 2025, and ultimately brought the present application on 3rd October 2025. 36.That chronology reveals an unexplained gap. While subsequent action by the Applicant is noted, it does not account for the entirety of the delay as required under section 79G and the principles in Salat (supra). 37.The Court is therefore left with an explanation that is partial and unsupported in material aspects. It falls short of the threshold of good and sufficient cause. 38.In the premises, the request for enlargement of time cannot be sustained. 39.The Court now turns to the issue of stay of execution. 40.The applicable framework is Order 42 rule 6 of the Civil Procedure Rules, which requires an applicant to demonstrate substantial loss, that the application has been made without unreasonable delay, and to furnish security for due performance of the decree. These requirements are conjunctive, and the absence of any one is fatal to an application for stay. 41.The jurisdiction is discretionary, but must be exercised on settled principle, as articulated in Butt v Rent Restriction Tribunal [1982] KLR 417, that a stay ought to be granted where it is necessary to preserve the subject matter so as not to render an appeal nugatory. 42.In the present case, the decree has already been substantially executed as deponed in paragraphs 14, 15 and 16 of the Respondents replying affidavit. The Applicant’s title was cancelled, the Respondent registered as proprietor, and possession of the suit property transferred. The Respondent has produced evidence to ascertain that they are currently registered as the proprietors of the suit property. 43.The substratum of the decree has effectively been spent in practical terms, and there is nothing left to preserve in the manner contemplated under Order 42 rule 6. 44.In any event, in light of the Court’s finding that no good and sufficient cause has been shown for enlargement of time, there is no competent appeal properly before the Court to anchor an order of stay. The application for stay of execution therefore fails. 45.Accordingly, the application dated 3rd October 2025 is hereby dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED, AT THIKA THIS 20TH DAY OF MAY 2026.……………………..J. M. ONYANGOJUDGEIn the presence of:Mr. Musa for Mr. Kiptunge for the Appellant/ ApplicantMr. Kanyi Kiruchi for the Respondent.Court Assistant: Hinga